Elena Kagan’s Revealing Commerce Clause Evasion

Many Americans have a vague sense that the United States has drifted far from its constitutional origins. Every once in a while, something happens that prods us to recognize just how far we’ve gone.

Such was the case last week, during the Senate hearings on Supreme Court nominee Elena Kagan. One of the most widely circulated C-Span video clips was Senator Tom Coburn’s insistent question as to whether the Constitution’s commerce clause permitted Congress to pass a hypothetical law dictating that all Americans must eat a prescribed number of fruits and vegetables every day.

Kagan was clever enough to understand that what Coburn was really asking was, “Is it possible to justify the continued expansion of congressional powers—in particular recent health care reform legislation—on the basis of the authority granted by the commerce clause?” Kagan replied that the fruits and vegetables measure would be “dumb” law. She didn’t dare suggest that it would be unconstitutional, however, for she rightly recognized that she would be backing herself into a judicial corner. How many laws might she have to strike down as Supreme Court justice if she followed a “strict” interpretation of the Constitution?

Thus we’ve come to a point at which a Supreme Court nominee cannot bring herself to condemn a manifestly totalitarian law, because doing so would be utterly inconsistent with federal jurisprudence over the last 80 years. Kagan’s response shines a spotlight on the fact that the Constitution exercises little restraint upon the activities of our national government. This is dangerous territory.

There are rearguard actions from time to time. The Court invalidated campaign finance reform early this year, judging it to be a violation of first amendment rights—for which the justices were upbraided by President Obama on national television during a State of the Union Address. Yet, by and large, Congress acts with impunity to intervene in our economic affairs, usually justifying itself (in those rare cases when it feels the need to do so) by recourse to the commerce clause.

Perhaps it’s worth revisiting that passage from our founding document, on which millions of pages of federal regulation have been piled. Can it support such weight?

Congress shall have power, it says, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That’s it. The original purpose of this directive with respect to commerce “among the several States” was to ensure that there would be no interstate trade barriers. The formation of a vibrant national economy, the framers correctly understood, could not very well proceed when Ohio and Michigan erected tariffs against each other. So, the intent of the commerce clause was to protect the principle of free trade within the United States, leaving other financial and mercantile regulatory authority to each state.

Taking the Constitution seriously is important because the document forms the basis for the rule of law in this country. By ratifying it, the states and the citizens thereof affirmed the truth of a great paradox: Enacting limitations on ourselves is the only way to guarantee lasting and genuine freedom. It was a profoundly moral endeavor. The Christian notion of sin lay at the heart of many Americans’ belief that the tendency toward corruption and aggrandizement in government officials—and the potentially destructive whims of democratic majorities themselves—must be guarded against not only by promotion of personal virtue but also by legal instruments such as constitutional separation of powers and checks and balances.

For the most part, the Supreme Court honored the intent of the commerce clause until the 1930s, when the force of public sentiment and political pressure stemming from the Great Depression began to pry the lid off, loosing its potential as a Pandora’s box of federal government programs reaching into every corner of American life. In 1942, the Court defended a production quota on wheat set by the Department of Agriculture, upholding the prosecution of an Ohio farmer for growing too much. When he used his excess, the decision explained, he wouldn’t be buying that amount on the market. His flouting of the law thus affected interstate commerce.

Quod erat demonstrandum: The government can tell you what and how much to grow. Why can it not also tell you that you must purchase health insurance (and therefore what kind, and from which approved vendors)? And why can’t it tell you what and how much you may eat?

Our hope lies in our belief that, when a law is “dumb” enough, nine fellow Americans on the Supreme Court will have the good sense to strike it down. But we will be dependent on their sense alone. Although they will invoke the Constitution as a fig leaf for whatever judgment they render, we know the truth: Its value as a curb on government action—and therefore as a safeguard of freedom—was all-but-destroyed long ago.

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